Boston & M.R. v. Town of Greenfield

• Decision Date: 15 October 1925
• Citation: 253 Mass. 391,149 N.E. 322
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON & M. R. v. TOWN OF GREENFIELD et al.

253 Mass. 391

149 N.E. 322

BOSTON & M. R.

v.TOWN OF GREENFIELD et al.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 15, 1925.

Report from Superior Court, Franklin County; H. T. Lummus, Judge.

Petition for bill of review by the Boston & Maine Railroad against the Town of Greenfield and others to review a decree entered on petition for abolition of grade crossing. On report. Orders for interlocutory decree overruling demurrer and for final decree affirmed.L. S. Nicholson, of Boston (C. O. Pengra, of Boston, on the brief), for petitioner.

M. J. Levy, for Town of Greenfield.

RUGG, C. J.

This is a petition for a bill of review filed in September, 1924. Permission to file it was granted by a judge of the superior court. Review is sought of a decree entered upon a petition filed in October, 1911, under St. 1906, c. 463, part I, §§ 29-45, now G. L. c. 159, §§ 65-82, for the abolition of a grade crossing in Greenfield of a highway and the tracks of a railroad then owned by the Connecticut River Railroad, but operated and now owned and operated by the Boston & Maine Railroad. The Connecticut Valley Street Railway Company, having a location in parts of the street although not over the crossing itself, was a party to these proceedings because it was then expected that it would construct tracks on the new highway under the bridge which would carry the railroad. A commission was appointed. Its report after full hearings was to the effect that the security and convenience of the public required the abolition of the crossing, that specified changes in the highway and railroad should be made, that the work of construction in the main should be performed by the railroad and that the cost should be paid, sixty-five per cent. by the railroad, ten per cent. by the street railway company, ten per cent. by the town and fifteen per cent. by the commonwealth. The report of the commission was in all respects approved and confirmed by decree entered on May 8, 1917. No part of the work directed by the report and decree has ever been done. On August 19, 1924, the town moved for a decree ordering the railroad to proceed with the work. G. L. c. 159, § 79. Thereafter the present bill of review was filed. The commonwealth joins in the prayer for a review, the Connecticut River Railroad consents and the receiver of the street railway company does not oppose. The town alone objects to review. It filed a demurrer founded on absence of jurisdiction, on laches, on want of right to a bill of review at this time, and on prolonged disobedience of the decree by the petitioner. It also set up in its answer lack of jurisdiction, laches and failure to petitioner to carry out the decree.

There was a hearing upon this bill of review before a judge of the superior court. The material facts as found by him may be summarily stated.

The highway at the crossing is not a main artery of travel and no one is compelled to use it to reach the business center of Greenfield. Its use, however, is increasing and, so far as can be foreseen, probably will continue to increase. The railroad line is of considerable importance as a through line from Springfield in this commonwealth to Newport in Vermont and Sherbrook in Canada. The operation of trains over it has diminished from an average of thirty-three trains a day in 1917 to about twenty-three trains. Safety devices for crossings to warn travelers of the approach of trains have been invented and improved since 1917. The estimated cost of carrying out the decree has increased from $65,800 in 1917 to $79,200.

The street railway company in 1917 was solvent and in active operation, is now entirely out of business, operates no railway, has no assets, is unable to meet any financial obligations, and cannot pay any part of the ten per cent. of the cost of the abolition assessed upon it.

[1] The financial condition of the railroad is very different now from what it was in 1917. Its not income for the calendar year 1916 was almost $5,000,000, and for the period of eight years preceding, about $4,000,000. It was in the hands of a receiver from August 31, 1916, to December 1, 1919. On January 1, 1918, it passed into the control of the United States of America and was operated by it until February 28, 1920. Further findings are:

‘For six months after February 28, 1920, the railroad was operated by the Boston & Maine Railroad under a guaranty from the federal government. The net income for the calendar years 1918, 1919 and 1920 was $3,530,153, not making any deduction for sinking fund requirements. On January 1, 1919, by acquiring the stock of lines leased to it, and giving in exchange its own first preferred stock, the Boston & Maine Railroad reduced its rentals about $2,600, 000 per annum, but increased its preferred stock about $38,817,900. At the same time the bonded indebtedness was increased by $19,879,000. In 1921 the deficit in the operation of the railroad, computed in the same way, was $6,612,421; in 1922 there was net income of $27,991; in 1923 a deficit of $3,491,070 and in 1924 a net income of somewhat more than a million dollars. Large borrowings from the federal government have been the only means by which the railroad has been kept in operation. The obligations of the railroad cannot be sold in the open market on terms which would permit the railroad to finance itself. More than five million dollars in bonds mature in 1925, and there are no adequate funds with which to meet them, and no means of issuing new bonds in the market to raise money with which to meet them. In 1926 more than eleven million dollars in bonds mature, and the prospects are the same as to them. Unless the federal government comes to the rescue, or the bondholders forego their rights, a foreclosure is probable. A part of the difficulty in making a profit is due to the greatly increased cost of labor, coal and other things used by the railroad, and a part is due to increased motor competition. Increased freight and passenger rates have not counterbalanced the increase in expense. * * * During federal control, by general order No. 12 issued March 21, 1918, the federal Director General of Railroads ordered the discontinuance of all additions or betterments, in order to avoid the raising of capital and the diversion from war needs of the available supply of labor and material. The financial distress of the railroad has been all the time, since 1917, a matter of common knowledge. The town of Greenfield apparently recognized it, for no attempt to enforce the decree was made until 1924. In view of the history of the railroad and the public interests involved, I do not find that the railroad was guilty of laches, and find that its bill of review is not too late.’

[2] Proceedings under a petition for the abolition of a grade crossing are in equity. St. 1906, c. 463, part I, §§ 29, 40, now G. L. c. 159, §§ 65, 79; Selectmen of Norwood, Petitioners, 183 Mass. 147, 151, 66 N. E. 637.

[3] A decree such as that of May, 1917, confirming the report of the commission was final in its nature. It settled the rights of the parties as to the main issues and left nothing further to be decided by the court in those particulars. A decree of that nature is described in St. 1906, c. 463, part I, § 43, now G. L. c. 159, § 81, and in Mayor and Aldermen of Waltham, Petitioners, 206 Mass. 208, 209, 210, 92 N. E. 477, as a ‘final decree.’ It possesses the incidents of a final decree as commonly described. Forbes v. Tuckerman, 115 Mass. 115, 119;Smith v. Smith, 222 Mass. 102, 103, 109 N. E. 830;Shannon v. Shepard Manuf. Co., 230 Mass. 224, 229, 119 N. E. 768;Johnson's Case, 242 Mass. 489, 494, 136 N. E. 563. Although the proceeding was not ended, the appointment of an auditor and other subsequent judicial action relate to the execution and not to any modification of the decree. See G. L. c. 159, § 79, and Middleborough v. New York, New Haven & Hartford Railroad, 179 Mass. 520, 61 N. E. 107.

[4] A bill of review is the appropriate proceeding by which to seek reversal of a final decree in equity. Evans v. Hamlin, 164 Mass. 239, 41 N. E. 267;Morgan v. Steele, 242 Mass. 217, 218, 136 N. E. 77;New York Central tral Railroad v. Ayer, 252 Mass. --, 148 N. E. 567 and cases there collected; Cherry v. Cherry, 252 Mass. --, 148 N. E. 570.

[5] A bill of review commonly is granted only (1) for error of law apparent on the record, (2) new evidence not susceptible of use at the trial and coming to light after the decree, and (3) new matter arising after the entry of the decree. Clapp v. Thaxter, 7 Gray, 384, 386;Mackay v. Brock, 245 Mass. 131, 133, 134, 139 N. E. 517;Manning v. Woodlawn Cemetery Corp., 249 Mass. 281, 288, 144 N. E. 99.

[6] The ground of relief alleged in the case at bar rests wholly upon matters which have arisen since the entry of the final decree in May, 1917. So far as concerns descriptive averments, it falls within the third classification just mentioned. Ballard v. Searls,...